Tijendra Kumar Singh @ Tijendra Singh @ Tiju Singh v. The State Of Bihar & Ors.

Upendra Nath Choudhary Vs. High Court of Judicature at Patna & Anr. reported in 2007(2) PLJR which has laid down that seeking a report from the Probation Officer and considering the same before passing an order in order to giving benefit of the provision of the Act is a mandate of law and that could not be overlooked by any 3 court. I have held in the light of the above division bench decision in Cr. Appeal (SJ) No. 105 of 2011 that the mandate of law has to be complied with but if it is found that the Probation Officer is dilly dallying with the submission of report or undue time is being consumed, then the court may not wait further for the report and after giving sufficient opportunity for furnishing the report, may go on to pass an order which could be justified in the facts and circumstances of the case if he is satisfied from the materials available on record that the benefit is to be extended to the accused even in absence of the report. Coming to the present judgment, the learned Additional Sessions Judge – X, Patna while passing the order on 1.10.2010 by which he was extending the benefit of the Act appears not only not seeking a report from the Probation Officer but not even referring to that mandate of law and went on to passing the impugned order. This is the fallacy which is reflected from the impugned order and that part of the judgment by which the respondents were given the benefit under the Act is hereby set aside even without hearing the respondents because the mandatory provision of law has not been complied with and the order on the very face of non compliance of the provision of section 4 of the Act appears passed without jurisdiction. The matter is remitted back to the court below for passing a fresh order which shall be passed after obtaining a report from the 4 Probation Officer. The court below should give sufficient time to the Probation Officer for furnishing a report and in case he finds that the Probation Officer is not prompt enough in submitting the report, he could be proceeding further. As soon as the trial court receives the present order, he shall issue notice to the respondents and simultaneously he shall send for a report from the Probation Officer and thereafter proceed to dispose of the case in the light of the observations made above. Anil/ ( Dharnidhar Jha, J.)